Citation Nr: 1106932
Decision Date: 02/22/11 Archive Date: 03/04/11
DOCKET NO. 07-21 830 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for a low back disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Emily Tamlyn, Associate Counsel
INTRODUCTION
The Veteran served on active military duty from October 1975 to
January 1991. The Veteran reported in August 2008 that he was
currently on active duty in the Army Reserve.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal from an October 2005 rating action in which the
Department of Veterans Affairs Regional Office (RO) in San Diego,
California denied service connection for a lower back disability.
Jurisdiction is currently with the RO in Montgomery, Alabama.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the Veteran if
further action is required.
REMAND
The Veteran contends in a November 2004 statement that his lower
back injury started in service and was chronic throughout his
service. He states that prior to a lower back injury at basic
training in 1975 he had no back problems. He had surgery in June
2003, but this procedure did not repair his lower back.
In July 2005, the RO determined that the Veteran's complete
military service treatment records were unavailable for review.
Service treatment records from December 1975 to September 1976
were initially submitted by the Veteran in November 2004. These
records show that the Veteran reported back and hip pain
radiating down his left leg and was given a diagnosis of
sciatica.
A record from in-patient treatment at the William Beaumont Army
Medical Center from February 1976 shows a diagnosis of resolved
herniated nucleus pulposus. The record also has the following
line crossed out: "He states he had back pain and a fracture 2
years ago but does not have back pain at present."
Private medical records show the Veteran was seen by Dr. Johnson
for severe back pain with radiculopathy in April 2003. A
November 2003 letter from Dr. Hash states he had lumbar disc
surgery in June 2003 with great results. In January 2004, a
private chiropractor recommended limited work hours for the
Veteran for several days until the he was able to have surgery.
At an August 2005 VA examination, the examiner reviewed the
available medical records and noted that the Veteran failed to
get an X-ray that was scheduled for the same day. The examiner
diagnosed the Veteran with a herniated disk and "neuropathy,
radiculopathy, left leg secondary to low back disorder." The
Veteran told the examiner about an injury in basic training. The
Veteran believed this injury coincided with the start of his back
problems. The examiner was unsure as to whether this herniated
disk was related to the initial injury from basic training. The
examiner stated that whether or not the diagnosis was related to
that injury would call for speculation.
More service treatment records dating from December 1975 to June
1986 were submitted by the Veteran in October 2005. These
additional treatment records show that the Veteran was
consistently treated for his lower back and put on profile as a
result of his back problems. In September 1976, June 1978 and
January 1979 his condition was characterized as chronic.
The Veteran also submitted November 2006 medical evaluation board
papers; they show that the he was put on probationary status due
to his current diagnosis of degenerative disc disease.
In August 2008, the Veteran wrote to say that he was currently on
active duty until March 2009. In October 2008, he submitted a
letter from Dr. Hash. Dr. Hash reviewed the Veteran's service
treatment records and stated he noted the Veteran's diagnosis of
a herniated disc while in service in 1975 and second disc
herniation in 2003 (service treatment records actually show
herniated disc was diagnosed in 1976). Dr. Hash stated that he
considered the more recent disc herniation "a continuation of
the injury in 1975 as the L4-5 disc was herniated after the
injury in the military and was weak and prone to extrusion."
The Board finds that a VA examiner should have the opportunity to
review the new evidence that has been associated with the file.
See 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4)
(2007); and McLendon v. Nicholson, 20 Vet. App. 79 (2006)
(stipulating that VA's duty to assist veterans, pursuant to the
VCAA, includes the duty to obtain a medical examination and/or
opinion when necessary to make a decision on a claim).
Additionally, there was no waiver submitted for the new evidence
in the file.
While there is evidence of a Personnel Information Exchange
System (PIES) request for information surrounding the Veteran's
discharge, there is no PIES request for all of the Veteran's
records. On remand, a PIES request for all available records
should be made and a negative response should be associated in
the file.
Additionally, the December 2004 VCAA notice is inadequate as it
does not explain the information and evidence that is necessary
to substantiate the Veteran's claim for a low back disability.
As a result, the RO should first send a corrective letter, then
acquire all records (service treatment and personnel) from the
Veteran's most recent period of service in the Army Reserve, and
schedule a new VA examination.
Accordingly, the case is REMANDED for the following action:
1. A corrective letter fully complying
with the VCAA notification requirements
pertaining to the de novo claim for service
connection for a lower back disability
should be issued. Specifically, the letter
should:
(a) Notify the Veteran of the information
and evidence necessary to substantiate his
claim of service connection for a lower
back disability;
(b) Notify the Veteran of the information
and evidence he is responsible for
providing;
(c) Notify the Veteran of the information
and evidence VA will attempt to obtain,
e.g., that VA will make reasonable efforts
to obtain relevant records not in the
custody of a Federal department or agency
and will make as many requests as are
necessary to obtain relevant records from a
Federal department or agency; and
(d) Notify the Veteran that a disability
rating and an effective date for the award
of benefits will be assigned if service
connection is awarded.
2. Request all of the Veteran's service
treatment and personnel records from PIES.
Also, obtain service treatment and
personnel records from the Veteran's most
recent period of service on active duty
(the Veteran reported in August 2008 that
he was on active duty in the Army Reserves
at Fort Knox, KY until March 2009). A
negative reply is requested for both the
PIES request and for the more recent
active duty period in the Army Reserve;
associate any negative reply with the
file.
3. The Veteran should be scheduled for a
pertinent VA examination to determine the
nature, extent, and etiology of any lower
back disability that he may have. The
claims folder must be made available to
the examiner in conjunction with the
examination. All indicated testing should
be conducted. All pertinent pathology
should be noted in the examination report.
For any low back disability found, the
examiner should be requested to indicate
whether it unmistakably pre-existed
service. If so, did it undergo a
measurable increase in severity (beyond
its natural progress). If not, is there a
50 percent probability or greater, that
clinical onset began in service or is
otherwise related to active service. In
answering these questions, the examiner
should address the service and post
service medical records as well as Dr.
Hash's October 2008 letter. Complete
rationale should be given for all opinions
reached.
4. Thereafter, the agency of original
jurisdiction should re-adjudicate the
claim for service connection for a lower
back disability. If the decision remains
in any way adverse to the Veteran, he and
his representative should be provided with
a Supplemental Statement of the Case
(SSOC). The SSOC must contain notice of
all relevant actions taken on the claim
for benefits, to include the applicable
law and regulations considered pertinent
to the issue on appeal as well as a
summary of the evidence of record. An
appropriate period of time should be
allowed for response.
The Veteran has the right to submit additional evidence and
argument on the matter the Board has remanded. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by the
United States Court of Appeals for Veterans Claims (Court) for
additional development or other appropriate action
must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2010).
_________________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the Court. This remand is in the nature
of a preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(2010).